' MUHAMMAD AKHTAR SHABBIR, J.--The brief facts out of which the present appeal arises are that the appellant No,1 being a partnership firm have been maintaining an account with the respondent/Bank in the name and style of their business concern M/s. United Steel Corporation with one Mian Muhammad Aslam (appellant No,5) as their attorney who is duly authorised to operate the account. The appellants requested the respondent/Bank firstly in the year 1986 for running finance facility which was allowed by the respondent/Bank and finance facility to the tune of rupees one million. The appellants availed the said facility and executed registered mortgage deed in favour of the Bank on 22-11-1986. Subsequently, the appellants requested the respondent/Bank for further finance facility for the purpose of expansion of their business which was also allowed by the respondent/Bank and an agreement was also executed between the appellants and the respondent. The appellants also executed the following documents in favour of respondent/Bank as security for the aforesaid finance facility:-
(1) Mortgage deed in favour of the respondent/Bank which was duly signed by appellant No,2 (Mian Javaid Aslam), appellant No,3 (Mian Muhammad Akram), appellant No,4 (Mst. Razia Zaman) which was witnessed by Muhammad Aslam and Muhammad Zaman.
(2) Deposit of title by Mst. Razia Zaman, appellant No,4 and Mian Muhammad Akram appellant.
No,3.
(3) Promissory. Note.
(4) Letter of Hypothecation duly signed by Mst. Razia Zaman appellant No,4, and appellant No,5 Mian Muhammad Aslam.
(5) Registered sale-deed, dated 27-2-1986.
' The appellants failed to discharge their liabilities regarding the aforesaid finance facility obtained by the respondent/Bank. The respondent/Bank requested the appellants to discharge their liabilities in accordance with the terms and conditions of the agreement executed between the appellants and respondent/Bank. Mian Muhammad Aslam, appellant No,5 submitted a reply to the respondent/Bank in the following terms:- "We are intended to have better business relations with the Bank and are trying our best to clear our liabilities as early as possible vide letter, dated 16-2-1993.
' Subsequently, respondent No,5 also admitted the liability vide letter, dated 12-3-1995 in the following terms:-- "We do not intend to be involved in any litigation and want to have good business relations with the Bank. We shall abide by all rules and Regulations of the Bank. We hope that our request will receive your sympathetic consideration."
2. The appellants did not discharge their liabilities in accordance with the terms and conditions of the agreement executed between the appellants and the respondent/ Bank. The respondent/Bank was constrained by the aforesaid circumstances, filed a suit for the recovery of Rs,19,88,277.10 plus 20% liquidation damages vis. Rs,3,97,655 along with mark-up, incidental charges and all other expenses under sections 7 and 9 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, before the Banking Court. The appellants filed joint application for the grant of unconditional leave to defend the titled suit on 20-12-1997. The respondent/Bank filed a reply of the application on 14-3-1998. The learned Banking Court dismissed the application of the appellants for leave to defend and decreed the suit of the respondent/Bank under section 9(4) of the Banking Companies (Recovery of Loans, Advances Credits and Finances) Act, 1997, against the appellants vide judgment and decree. Dated 8-12-1998. Hence, the present appeal.
3. Learned counsel for the appellants contended that the Banking Court dismissed the application of the appellants without obtaining reply of the application which is mendatory by virtue of sections 10 and 11 of the Banking Companies Act, 1997. He further stated that the Banking Court dismissed the application of the appellants without applying its judicious mind, therefore, the same is not sustainable in the eyes of law. He relied upon Haji Ali Khan and Company's case reported as PLD 1995 SC 362. He further stated that mere reading the contents of the plaint the same is liable to be dismissed as is evident from para. 3 of the plaint that the appellants obtained finance facility from the respondent/Bank through their attorney Muhammad Aslam. Whereas the title of the suit shows that Muhammad Aslam was impleaded as respondent No,5. He further stated that agreement was not signed by the appellants Nos.1 to 4. It was only signed by the appellant No,5. He being a attorney of the appellants Nos.1 to 4 does not fall under the definition of Customer by virtue of section 2(d) of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997. He further stated that other documents were also not signed by the appellants Nos. I to 4, therefore, the suit is liable to be dismissed but the Banking Court did not consider this aspect of the case. He further stated that respondent/Bank filed statement of accounts without any certificate, therefore, learned Banking Court wrongly relied upon the statement of accounts. He further stated that it is the duty of the respondent to prove the contents of the plaint in accordance' with the provisions of Qanun-e-Shahadat Order, 1984 but the respondent failed to prove the contents of the plaint. He further stated that the respondent has obtained blank paper as is evident from the agreement executed between the appellant No,5 and the respondent. He further stated that the document itself speaks that it was not witnessed by any witness as well as no date was mentioned at the end of the document. He further stated that the Banking Court did not give reasons by rejecting the application of the appellants. He relied upon the cases of Mian Rafique Saigol, and another v. Bank of Credit and Commerce International (Overseas) Ltd. And another (PLD 1996 SC 749). He stated that the appellants have also taken a stand that the documents appended with the plaint are fake, fictitious having been manipulated, forged and fabricated by the functionaries of the respondent/Bank. He further stated that the mortgage deeds are irrelevant to file the suit before the Banking Court as the alleged mortgagor cannot file suit through Banking Court in view of the definition of the Customer which contemplates that the customer means a person who has obtained finance under a system which is not based on interest from a Banking Court. Appellant No,5 is not competent to operate upon the account or transact any Banking Business with the respondent/Bank.
4. Learned counsel for the respondent stated that the appellants are availing the finance facility since 1986. Appellant No,5 is the attorney of the appellants to maintain the account and draw cheques from respondent/Bank on behalf of the appellants. The appellants did not agitate this matter that the appellant No,5 is not their attorney. He further stated that original documents were handed over by the appellants to the Bank and this fact is sufficient to establish that the appellants utilized finance facility provided by the Bank. He further stated that the appellants failed to discharge their liabilities otherwise respondents themselves have submitted an application for return of the original documents. This facility was granted to the appellants after completing all the legal formalities. The appellants did not deny the liabilities as is evident from the letters, dated 16- 2-1993 and 12-3-1995, therefore, the appellants are stopped to agitate the same at this belated stage on the principle of approbate and reprobate. He further stated that statement of accounts is admissible in evidence by virtue of section 4 of the Bankers' Books Evidence Act, 1891. He further stated that "respondent has filed a suit before the Banking Court and the Banking Court is the competent Court to take cognizance of the matter as the appellants have executed mortgage deed in favour of the respondent/Bank as the appellants cover under the definition of customer by virtue of section 2(d) i,e, customer includes a surety or an indemnifier". He further stated that the respondent has filed reply of the application of the appellants, therefore, there is no violation of section 10/11 of the Act. He further stated that documents are duly signed by the appellants and liabilities are admitted and accepted by them, the facilities were availed by the appellants.
Learned Banking Court after considering all the documents attached with the plaint, application for leave to defend and reply, dismissed the application of the appellants with cogent reasons. The appellants did not deny facilities availed by them, therefore, appeal has no merit.
5. We have given our anxious consideration to the contentions of the learned counsel for the parties and perused the record ourselves with the assistance of the learned counsel for the parties.
The contention of the learned counsel for the appellants that the Banking Court has no jurisdiction to take cognizance of the matter has no force as the mortgage deed was duly executed between the parties, therefore, borrower and customer includes a surety or indemnifier by virtue of section 2(C and D). The Legislators in their wisdom extended the definition of borrower or customer having been extended to cover surety or indemnifier, guarantor would be terms as borrower or customer for the purposes of the Banking Companies (Recovery of Loans, Advances, Credits and Finances)
Act, 1997. We are fortified by the judgment of the Karachi High Court reported as Fort Supper Pakistan's case (1988 M LD 1058).
The statement of accounts annexed with the plaint which has been certified under the Bankers'
Books Evidence Act, reveals these deposits as having been made by the appellants and thus presumption of correctness has to be attached thereto when the entries have not in any manner whatsoever been rebutted by the appellants with cogent reasons. The aforesaid deposits shall have to be, therefore, taken as having been made by the appellants on the dates on which these are shown to have been due in the books of accounts of the respondent/Bank. Coupled with the facts that the appellants utilized the finance facility provided by the Bank and the appellants did not deny their liabilities as is evident from the replies of the letters of the respondent/Bank appellant No,5 on 16-2-1993 and 12-3-1995 respectively. It is pertinent to mention here that appellant No,1 being a partnership firm, therefore, under the Partnership Act each and every partner is jointly and independently held responsible to re-pay the debts of the respondent/Bank. It is settled proposition of law that where the claim filed before the Banking Court is for the enforcement of a mortgage of a immovable property "(decree)" shall mean final decree for foreclosure, sale or redemption, as the case may be by virtue of order 34 of the First Schedule of the Civil Procedure Code. We are fortified by the judgment of the Karachi High Court reported as Akbar Agencies' case (PLD 1987 Kar. 81).
The following broad principles may be enunciated by the superior Courts for determining the controversy regarding grant or refusal of leave to defend the suit under Order 37, C.P.C. And more particularly in cases under Banking Companies (Recovery of Loans) Ordinance, 1979 or Present Act 1997:---
(a) Leave shall be refused if no defence worth the name is made out on facts or in law in the application for leave to defend.
(b) Leave shall also be refused if the defence disclosed on affidavits is sham or colourable or illusory/ imaginary and may not give rise to triable issues.
' Needless to add that in both the above events a decree shall follow in the suit---
(c) if a defence is disclosed on affidavits which may warrant putting the plaintiff to prove consideration, leave shall be granted;
(d) where the defendant discloses upon his affidavits a case which may constitute a plausible defence or shows that there is some substantial question of fact or law which needs to be tried or investigated into, then also the defendant shall be entitled to leave to defend.
' The permission to appear and defend suit in any of the cases falling under categories (c' and (d) above may be unconditional or subject to such conditions/ terms as may be imposed by the Court.
(e) If the defence set up is found to be vague or unsatisfactory or not genuine or cursory on perusal, leave may not be refused altogether, and if it be felt that there may be prima facie triable issues arising out of the defence disclosed, leave may be granted but on terms as may be considered necessary by the Court.
It is pertinent to mention here that in any case so far as the obtaining of the loan and the execution of the documents in connection with the same are concerned, these were admitted. Learned counsel for the appellant contended that the agreement was signed by appellant No, 5 as attorney but as mentioned above the mortgage deed was duly signed by the other appellants coupled with the fact that the original documents of the appellants are still with the Bank, therefore learned Banking Court had no option but to reject the application filed by the appellants.
6. As mentioned above, the appellants Nos.1 to 4 did not object to maintain the account by the appellant No,5 with the respondent/Bank, therefore, they are estopped to agitate the same by virtue of their conduct on the well-known principle of approbate and reprobate. We are fortified by the judgment of the Supreme Court in Ghulam Rasool's case (PLD 1971 SC 376). Learned Banking Court after considering all the documents attached with the plaint, contents of the application for leave to defend and reply of the application for leave to defend came to the conclusion after applying its judicious mind that the appellants availed the finance facility, therefore, application for leave to defend is based on surmises and conjectures. Learned Banking Court was justified to dismiss the same. The cases cited by the learned counsel for the appellants i,e, Mian Rafique Saigol's case (PLD 1996 SC 749) and Haji Ali Khan's case (PLD 1995 SC 362) did not support the cause of the appellants but the same supported the cause of the respondent. The judgment of the Banking Court is in accordance with the dictum as laid down by the Hon'ble Supreme Court of Pakistan in Ahmad Autos' case' reported as (PLD 1990 SC 497).
7. In view of what has been discussed above, this appeal has no force and the same is dismissed with no order as to costs.